ABDUL REHMAN Versus NAZIM
1. RAZA ALI KHAN, J.--- This appeal has been filed against the judgment and decree passed by learned District Judge Jhelum Valley, dated 13.11.2017, whereby suit filed by respondents, herein, has been decreed whereas suit filed by appellants, herein, has been dismissed.
2. Precise facts of the case are that Mst. Nishan, predecessor in interest of respondents, herein, filed a suit for permanent injunction against Abdul Rehman and others, appellants herein, in the Court of Sub-Judge Hattian Bala on 02.04.1989. It was averred that land comprising survey No.613 measuring 13 marlas, survey No.731/1 measuring 7 kanals 14 marlas situated in village Moji Chattar Gam Tehsil Lipa, was in the ownership of Bula. It was further averred that the plaintiff is owner and in possession of the suit land to the extent of her share for the last 40/45 years since lifetime of her father and constructed house thereupon. It was submitted that defendants were intended to interfere in the peaceful possession of the plaintiff. The defendants appeared before the Court and contested the suit by filing written statement, wherein it was submitted that plaintiff has no cause of action. It was further claimed that defendants are in possession of the land and have made improvements on the suit land.
3. Mst. Hashim Noor and others, also filed a counter suit for declaration, possession and cancellation of entries in the revenue record made in favour of Mst. Nishan, against Mst. Nishan and another in the same Court. It was stated that Mst. Ilam Jan and Nishan had no right in the inherited property of Bula due to their marriages in Dogra Regime. It was further stated that Mst. Nishan was given 10 marlas land for temporary residence. The defendants contested the suit by filing written statement and refuted the claim of co-plaintiffs. The learned trial Court consolidated both the suits, framed issues in light of pleadings of the parties and after providing the parties opportunity to lead evidence and right of hearing, vide judgment and decree dated 27.09.2011 decreed the suit filed by Mehboob Hussain and others and dismissed the counter suit filed by Hashim Noor and others, for want of proof. Hashim Noor preferred an appeal before the District Judge Hattian Bala, which was remanded to the trial Court with the direction for fresh decision after re-framing the issues. On remand, the learned trial Court vide judgment and decree dated 05.12.2006 dismissed the suit filed by Mehboob Hussain and others for want of proof and decreed the counter suit filed by Hashim Noor and others. Feeling aggrieved Mehboob Hussain and others, respondents, herein, filed an appeal before the District Judge Jhelum valley on 14.12.2016. The learned District Judge after hearing the parties vide judgment dated 13.11.2017 set-aside the judgment and decree passed by the learned trial Court and decreed the suit filed by Mehboob Hussain and others for permanent injunction and dismissed the counter suit filed by Hashim Noor and others for declaration, possession and correction in the revenue record for want of proof, hence, the captioned appeal.
4. The learned counsel for the appellant argued that on appeal the case was remanded to the trial Court by the learned First Appellate Court for fresh decision after re-framing issues, but the trial Court has not decided the re-framed issues, therefore, it was enjoined upon the District Judge to remand the case to the trial Court for decision on the re-framed issues. The learned Advocate further argued that it is proved from the record that Mst. Nishan was married in dogra regime, who was not entitled to legacy of her father as per customs followed by the family of the parties. The learned Advocate submitted that the trial Court rightly appreciated the evidence brought on record and dismissed the suit filed by respondents, herein, but the learned District Judge illegally set-aside the judgment and decree recorded by the trial Court and decreed the suit filed by respondents, herein, therefore, the impugned judgment is liable to be set-aside and that of trial Court is liable to be restored.
5. The respondents have filed written arguments, wherein, they supported the impugned judgment on all counts. The written arguments filed by the respondents are made part of the file, hence, need not to be reiterated.
6. I have heard the learned counsel for the appellants, considered the written arguments filed on behalf of respondents and perused the record of the case with utmost care.
7. The stance of the appellants, in their plaint was that Mst. Nishan, predecessor-in-interest of respondents, herein, was married in dogra regime and as per custom followed by their family, she was not entitled to the share from the legacy of her father and the land whereupon she constructed house was given to her for temporary residence in 1965. The burden to prove the custom was on the plaintiffs/ appellants. To prove the custom in derogation of personal law is on the party who alleges it and custom must be proved to have been exercised not merely by virtue of an agreement between the parties, but as of right and the evidence must show that claim was made by any of the heirs but such was the force of usage and custom that the claim was denied and custom prevailed. Once custom is pleaded it must be proved by satisfactory evidence. There is no presumption in favour of custom. In a case titled "Mst. Zargoon and others v. Mst. Shadana and others" (2002 CLC 1539) the learned Judge of Peshawar High Court observed as under:
8. "15. Similarly in Amirullah through legal heirs v. Surat Ali and 17 others PLD 1991 Pesh. 29 it was held that custom must be pleaded in specific terms and proved inductively by the person who pleads it and where custom was pleaded but not substantiated by credible evidence, same would be deemed to be disproved."
9. Similarly, in a case titled "Barkat Ali and 6 others v. Mst. Jan Begum and 5 others" (1998 SCR 333) the Hon'ble Supreme Court of Azad Jammu and Kashmir held as under:
10. "The rule that custom must be specifically pleaded means that proof of custom can only be given if it is firstly pleaded."
11. In a case titled "Mst. Kaneez Fatima and another v. Ghulam Hussain and 10 others" (1985 CLC 217) the Hon'ble Supreme Court of Azad Jammu and Kashmir observed as under:
12. "It appears therefore, that section 4(d), includes inheritance as well. Therefore, where the parties are Muslims, they are governed by the Muslim Law. Even in Punjab, the first rule was not always the custom while in Jammu and Kashmir State, the first rule was the Muslim Law. If a person alleged a custom, he had to prove that his case was governed by custom, and not by Muslim Law. So there was a presumption in favour of Muslim Law during the Dogra Regime which presumption came to an end in March 1948 wherefrom Muslim Law became the only law applicable to Muslims in such cases."
13. Similarly, in a case titled "Muhammad Ashraf Khan and 4 others v. Mst. Rehmat Jan" 2001 MLD 212 Hon'ble Supreme Court of Azad Jammu and Kashmir ruled as under:
14. "It may also be pointed out that the initial presumption is in favour of the application of Muslim personal law unless the custom is alleged and proved strictly."
15. In a case titled "Ghafooran Bibi and 4 others v. Iftikhar Ahmed and 4 others" (2006 MLD 1422) the learned judge of Lahore High Court observed that custom is no more rule of inheritance in Pakistan being repugnant to the injunctions of Islam and the decrees passed before the judgment rendered in Ishaq's case (PLD 1983 SC 273) giving any right to any person on the basis of such custom, were declared as void. The relevant observations recorded in para 8 of the judgment are as under:-
16. "Before parting with this judgment, I would like to point out that after the judgment of Shariat Appellate Bench of Hon'ble Supreme Court in Ishaq's case (PLD 1983 SC 273) declaring "custom no more rule of inheritance in Pakistan being repugnant to the injunction of Islam" and to implement the said judgment the Government of Punjab issued Ordinance No.XIII of 1983 i.e. Punjab Muslim Personal Law (Shariat) Act (Amendment) Ordinance and by virtue of section 2-A(c) even the decrees passed prior to the said judgment of the Hon'ble Supreme Court giving any right to any person on the basis of such custom, were declared as abated. The effect of said Ordinance was considered by the Hon'ble Supreme Court of Pakistan in Abdul Ghafoor's case (PLD 1985 Supreme Court 407) wherein, after analyzing the said Ordinance in the light of judgment in Ishaq's case (PLD 1983 Supreme Court 273) the Hon'ble Supreme Court while summing up the judgment held that custom was no more the rule of inheritance and any decree, judgment or order of any Court conferring right on any person under custom or usage unless it was a past and closed transaction was void."
17. In view of the above reproduced observations of the superior Courts, the parties will be presumed to be governed by the personal law unless they prove that they are governed by custom and that custom abrogates their personal law. No doubt, the period of custom is in the history but Islamic law of inheritance is guaranteed in the Quran and Sunnah, which is divine law and depriving Mst. Nishan from her share in inheritance of Bula is against the principle laid down by the Holy Quran and Sunnah. The Sri, Pratap Jammu and Kashmir Laws Consolidation Act, 1977 (B.K.) empowers the Courts to apply Islamic law where the parties to a case are Muslim, and the case involves any of the matters mentioned in the said Act. Section 4 of Sri Partab Jammu and Kashmir Laws Consolidation Act, 1977 B.K. provides that law of Sharia, will apply in which cases. For proper appreciation section 4 of the Sri Pratap Jammu and Kashmir Laws Consolidation Act, 1977 B.K. is reproduced as under:-
18. "The Mohammedan law in cases where in parties are Mohammedans and the Hindu law in cases where the parties are Hindus, except into so far as such law has been, by this or any other enactment, altered or abolished or has been modified by any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience and has not been by this or any other enactment altered or abolished, and has not been declared to be void by competent authority."
19. This Act was promulgated in year 1920 A.D. and was enforced for a period of two years from 1st Baisakh, 1978 (13th April, 1921). Enforcement of this Act was extended from time to time and on 1st Baisakh, 1981 B.K. (13th April, 1924) it was ordered that State Council Resolution No.1, dated 8th April, 1925 shall remain enforce without the limit of time. After going through the evidence brought on record, I am of the view that plaintiffs/ appellants could not prove that their family was governed by the custom rather being Muslims they were bound by the Islamic laws. Abdul Rehman, one of the defendants/plaintiffs during cross-examination admitted that they belong to Muslim Family and it is correct that they follow Shariat. Under the Islamic laws, after the death of a Muslim, his/her legacy shall be devolved upon his/her legal heirs as per Sharia. Admittedly, Mst. Nishan was the daughter of Bula, therefore, she was entitled to her share from the legacy of her deceased father Bula. It is also proved from the record that Mst. Nishan was handed over the land in dispute by her father in his life time whereupon, she has also constructed a house. The claim of the plaintiffs/ appellants, that they are in possession of the land and have made improvements is not proved from the evidence and even the commission appointed by the trial Court reported against the defendants/ appellants, herein and even otherwise, if this stand is deemed admitted, even then, they cannot deprive of Mst. Nishan from her share and as per law, possession of the brothers would be deemed to be the Possession of their sisters unless there is an express repudiation of the claims of the sisters by the brothers. A reference can be made to case titled "Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi" (PLD 1990 Supreme Court 1). The relevant observation recorded by the Hon'ble Supreme Court of Pakistan at page 11 of the report is reproduced as under:-
20. "It is not for the first time that it is being so held. Even earlier commentators on Islamic Law (its inheritance branch in particular) have indicated the same approach with reference to some decided cases. The heir in possession was considered to be in constructive possession of the property on behalf of all the heirs in spite of his exclusive possession, e.g., the possession of the brothers would be taken to be the possession of their sisters, unless there was an express repudiation of the claims of the sisters by the brothers."
21. The claim of the plaintiffs/ appellants that the name of Mst. Nishan has incorrectly been entered in the revenue record is also baseless because after the death of a Muslim, his property devolves upon his legal heirs irrespective of any entry in the revenue record, as has been held by the learned Judge of Sindh High Court in case titled "Syed Munawar Husain Shah v. Syed Nusrat Hussain and others" (2014 CLC 945). The relevant observation is reproduced as under:-
22. "A perusal of above referred Para leaves no doubt that as soon as a Muslim dies, the estate vests in his heirs and they become owners. In the instant case the applicant claims to be one of the legal heirs of the deceased being his son, therefore, he is entitled to inherit his estate according to his share prescribed by Muslim Law. The argument that the suit properties still stand in the name of deceased in record of rights and that in last 10 years the applicant did not get the record of rights mutated; therefore, he is not entitled for the relief sought by him, is misconceived. I resolve that on the death of a Muslim his legal heirs are entitled to inherit his estate although their names do not appear as heirs in the record of rights maintained by the Revenue Authority."
23. In view of above, it can safely be said that Mst. Nishan was granted her share as per Mohammedan Law which were also applicable in dogra regime to the extent of Muslim Families, therefore, the plaintiffs/appellants have no right to interfere in her possession. This Court cannot loose sight to sections 3 and 31(6) of the Azad Jammu and Kashmir Interim Constitution, 1974, which declares Islam as State religion and Islamic injunction to be the supreme law of land. It is astonishing that a state subject claiming to be a Muslim, just to deprive his father's sister from her share in the property of her father takes stance in complete negation and derogation of the Quranic Injunctions and sections 3 and 31(6) of the Constitution. A Muslim has to abide by the Islamic Injunction in toto and cannot adopt a practice of adherence to some of the same at his own choice. Allah Almightily's clear and unambiguous direction in this regard is:-
24. AJK-40
25. "Ye who believe" enter into Islam whole-heartedly; and follow not the footsteps of the evil one for he is to you an avowed enemy".
26. AJK-40
27. So, it stood established that a Muslim State Subject cannot adopt a course of action or take a stance in clear opposition and violation of Islamic injunctions in respect of inheritance or any other aspect of life. In view of above, I cannot stop myself to hold that there is no need to any further legislation to protect the female's share in inheritance and Courts should not entertain any claim in derogation to sections 3 and 31(6) of the Constitution.
28. The argument of the learned counsel for the appellants that trial Court did not attend additional issues framed in light of remand order by the District Judge, therefore, it was enjoined upon the District Judge to remand the case for decision to the trial Court on additional issues, has no substance because under section 107 Code of Civil Procedure, the Appellate Court has same powers as enjoy by the trial Court. For proper appreciation section 107 Code of Civil Procedure is reproduced as under:-
29. "Sec. 107.--- Powers of Appellate Court.---(1) Subject to such conditions and limitations as may be prescribed, an appellate Court shall have power-
(a) To determine a case finally;
(b) To remand a case;
(c) To frame issues and refer them for trial;
(d) To take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Court of original jurisdictions in respect of suits instituted therein."
30. If sufficient material is available on record the Appellate Court can decide an issue which has not been attended by the trial Court without remand of the case to the trial Court. Remand can only be made if there is no material available to resolve the issues not attended by the trial Court and it is necessary to record evidence on such issues. In my considered view, the learned District Judge has not committed any illegality while deciding issues in light of evidence of the parties, not attended by the trial Court.
31. The learned District Judge has discussed the whole evidence in its true perspective and reached at just conclusion, which hardly requires any interference by this Court.
32. In view of above finding no substance in this appeal, it is hereby dismissed, with costs.
33. ZC/40/HC(AJ&K) Appeal dismissed.